中美刑讯逼供发展及其遏制的比较研究

发布时间：2018-05-11 09:05

本文选题：刑讯逼供 + 中美　；参考：《南京大学》2012年硕士论文

【摘要】：刑讯逼供的产生是由人类的自然属性和暴力本能决定的,所以从司法活动在人类历史上出现的第一天起,刑讯逼供便如影随形,其实质是人类暴力在司法活动中的展现。在古代社会(指奴隶社会和封建社会)由于物质技术条件的局限,统治者对刑讯逼供相对比较依赖。在人类进入资本主义社会以后,物质技术突飞猛进的发展导致社会控制模式发生重大转变,政府对刑讯逼供不再像以前那么依赖,同时人们的人权意识日渐觉醒,社会对刑讯逼供的容忍度不断降低。与这一转变相对应,无论是在我国还是在西方,刑讯逼供都经历了由合法(放任、简单规范)到非法(基本禁止或全面禁止)的转变。当然,由于我国与美国迥异的历史和文化传统,我国遏制刑讯逼供工作起步要比美国晚得多。在人类社会进入20世纪以后(特别是第二次世界大战以后),世界各国法治普遍发展,人权观念在全球范围内得到弘扬,遏制刑讯逼供已成为人们的共识。于是,各国纷纷出台各种法律和政策,以遏制刑讯逼供,如美国法官通过判例确立和发展了无罪推定、不被强迫自证其罪特权、非法证据排除、米兰达告诫等规则；我国专门规定了刑讯逼供罪及无罪推定原则,并陆续引进了国外的某些制度,如非法证据排除、不被强迫自证其罪等。但由于各国法治发展进程不一,故而其遏制刑讯逼供工作的进度及其当前所面临的刑讯逼供问题的表现形态也不一样,如美国遏制刑讯逼供工作开始的比我国早,其当前遏制刑讯逼供的重点是变相刑讯逼供①以及针对某些人群(有色人种)的刑讯逼供和在美国境外发生的刑讯逼供等。而我国真正开始遏制刑讯逼供工作是在文革以后,我国遏制刑讯逼供的重点还停留在暴力刑讯及体罚上。因此,我们在研究刑讯逼供问题时,有必要从纵向和横向两个向度对这一问题进行分析,只有这样我们才能更好地认识刑讯逼供问题,把握其发展规律,从而更好地解决这一问题。而美国作为现代法治国家的典范,众多现代刑事诉讼原则是由美国确立的,其诸多法律思想及制度为其他国家认可和效仿,因此将我国与美国在遏制刑讯逼供问题上进行对比分析具有极为重要的理论价值和现实意义。它不仅可以让我们对刑讯逼供的未来发展有更清醒的认识,也能让我国在引进西方制度时能站在更高的高度,即在引进制度时不仅要了解其通盘理论和社会基础,还要对其局限性有明确的认识。只有这样才能使我国的法治建设发挥后发优势,少走弯路并走得更远。
[Abstract]:The production of extorting confessions by torture is determined by human nature and violent instinct, so from the first day that judicial activities appear in human history, extorting confessions by torture is accompanied by images, and its essence is the manifestation of human violence in judicial activities. In ancient society (refers to slave society and feudal society) because of the limitation of material and technical conditions, rulers relatively rely on torture to extract confessions. After human beings entered the capitalist society, the rapid development of material technology led to a major change in the mode of social control, and the government was no longer as dependent on extorting confessions by torture as before, and at the same time, people's consciousness of human rights was awakening day by day. The tolerance of society to extort confessions by torture is decreasing. In our country or in the West, extorting confessions by torture has undergone a change from legal (laissez-faire, simple norm) to illegal (basic prohibition or total prohibition). Of course, because of the different historical and cultural traditions between China and the United States, China's efforts to curb extortion of confessions by torture started much later than in the United States. After the human society entered the 20th century (especially after the second World War), the rule of law in all countries in the world has developed generally, the concept of human rights has been carried forward in the global scope, and it has become a common understanding to curb the extortion of confessions by torture. As a result, various countries have issued various laws and policies to curb torture to extract confessions. For example, American judges established and developed the presumption of innocence through jurisprudence, were not forced to testify against themselves, the exclusion of illegal evidence, Miranda admonition and other rules; The crime of extorting confessions by torture and the principle of presumption of innocence have been specially stipulated in our country, and some foreign systems have been introduced one after another, such as the exclusion of illegal evidence, the crime of not being forced to testify against oneself, and so on. However, due to the different development processes of the rule of law in various countries, the progress of its efforts to curb the extortion of confessions by torture and the manifestation of the current problems of extorting confessions by torture are also different. For example, the United States began to suppress the extortion of confessions by torture earlier than our country. At present, the emphasis of restraining the extortion of confessions by torture is to extort confessions by torture in disguised form, to extract confessions by torture against certain groups of people (people of color) and to extort confessions by torture outside the United States. However, after the Cultural Revolution, the focus of our country on restraining the extortion of confessions by torture is still focused on violent torture and corporal punishment. Therefore, when we study the problem of extorting confessions by torture, it is necessary to analyze the problem from the vertical and horizontal angles. Only in this way can we better understand the problem of extorting confessions by torture and grasp its development law. In order to better solve this problem. The United States, as a model of a modern country ruled by law, has established many modern principles of criminal procedure by the United States, and many of its legal ideas and systems have been recognized and imitated by other countries. Therefore, it is of great theoretical value and practical significance to make a comparative analysis between China and the United States in curbing the problem of extorting confessions by torture. It not only enables us to have a more sober understanding of the future development of extorting confessions by torture, but also enables our country to stand at a higher level when introducing western systems, that is, when we introduce systems, we should not only understand their overall theory and social basis. There is also a clear understanding of its limitations. Only in this way can the construction of our country's rule of law bring into play the advantage of latecomer, less detours and go further.
【学位授予单位】：南京大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D925.2

【参考文献】